Provisional Measures Research Articles

Interpretation of ‘reasonable compensation’ for damage caused by provisional measures

Bayer

Обеспечительные меры в практике Международного Суда ООН

Обеспечительные меры в практике Международного Суда ООН

Reflections on the extinction of the National Council for Food and Nutrition Security and the confrontation of Covid-19 in Brazil

ABSTRACT The Provisional Measure 870/2019, which amended the Organic Law on Food and Nutrition Security and extinguished the Conselho Nacional de Segurança Alimentar e Nutricional (National Council for Food and Nutrition Security), has brought serious consequences to the Brazilian population, especially for the most vulnerable. This scientific note brings reflections on the trajectory of the Conselho Nacional de Segurança Alimentar e Nutricional, the repercussions of its extinction in the last year, and the project to dismantle social protection policies in Brazil, with serious consequences at a time when the country is going through a crisis in public health due to the Covid-19 pandemic. The absence of the Conselho Nacional de Segurança Alimentar e Nutricional and the weakening of the set of policies for Food and Nutritional Security has mobilized the civil society to defend the human rights to food, food sovereignty, and to democracy itself. The resistance of the different social movements in order to maintain the spaces of civil participation related to Food and Nutrition Security public policies are still going to be long and arduous, demanding the continued vocalization and strengthening of partnership networks within the different movements of the organized civil society. Finally, we highlight the urgent need for restoration of the National System of Food and Nutritional Security (Sistema Nacional de Segurança Alimentar e Nutricional) with all its instances, and of other social policies, so that the negative consequences of the pandemic are avoided or mitigated and the State complies with its obligations to guarantee the rights of the Brazilian population.

A Step towards Certainty: An Evaluation of Provisional Measures in International Investment Arbitration

A Step towards Certainty: An Evaluation of Provisional Measures in International Investment Arbitration

The case law of the African Court on Human and Peoples' Rights in Libya following the Arab uprisings: Lessons learned for the consolidation and legitimation of the Court

This article examines the two cases brought before the African Court on Human and Peoples' Rights following the Libyan uprising in 2011: African Commission on Human and Peoples' Rights (Benghazi) v Libya and African Commission (Saif al-Islam Gaddafi) v Libya. These two cases mark three 'firsts': the first time for the African Commission to transfer a case to the African Court; the first order for provisional measures by the Court; and the first time the Court rendered a judgment by default. This study reveals that although the Court has taken significant steps in terms of its consolidation and legitimation, substantive and procedural challenges in its functioning remain. Moreover, the authors argue that the political divisions within the African Union diminished the Court's potential impact on the Libyan crisis.

Reforma do Ensino Médio no Estado do Rio Grande do Sul (Brasil): alinhamentos e resistências

In this article, we present an analysis of the first steps on the implementation of the Brazilian High School reform (Law no. 13.415/2017) in the state of Rio Grande do Sul, between September 2016 and December 2018. Based on Pierre Bourdieu’s concept of field, we examined strategies and positions of two agents in the educational field: the State Department of Education and the State Council on Education. Through a document analysis we found the state Department aligned to the Ministry of Education guidelines, reproducing education concepts bound to hegemonic interests in the economic field.  Whereas the state Council pursued a resistance strategy, initially rejecting the content of Provisional Measure no. 746/2016, but after it became law, by resisting within the norm, playing the game within the field to minimize its impacts on students. Keywords: High School reform. Law no. 13.415/2017. Rio Grande do Sul.

The Jurisdiction to Prescribe 0Provisional Measures by the International Tribunal for the Law of the Sea: Evolving Jurisprudence and Aspects of the Implementation

This article aims to unveil various features of provisional measures, especially under the ITLOS jurisdiction. The jurisprudence of other international courts and tribunals are very essential to understand how ITLOS deals with a request for provisional measures. Therefore, comparing the jurisdiction and jurisprudence of the ITLOS with other courts and tribunals will help to reveal various aspects of the provisional measures.

The role of african court on human and peoples’ rights protection: the case of libyan crises

The emergence of regional human rights systems depicts one of the greatest achievements in the internationalization of human rights. The foundation of the charter paved the way for the birth of the court thereafter. The African Court is established by virtue of the 1998 protocol to the Charter and the court is built upon an arsenal of protective and remedial techniques. The establishment of the court has reset the stage and created a new platform for the protection of human rights in Africa. The cardinal objective of the paper is to investigate the role of African Court on human and Peoples’ rights protection in Libya Crises taking the case of Saif Al Islam Gaddafi. The paper has utilized qualitative methodology. The government of Libya responded with brutal force against civilian protesters in contravention of international human rights and humanitarian law. The security force of the government of Libya killed many protesters as well. This situation intensified human rights violations and enforced many of the peoples to displace. The court issued an important ruling in March 2011, ordering provisional measures against Libya in the armed conflict in its territory. Libya government denied the claims of human rights violations in its territory and showed its willingness to subject itself to criminal investigations by the Court if necessary. The issue of the fund, independence, commitment and competence of judges to interpret mandate and jurisdiction, the willingness of the states to support and to abide by court decisions, and powers of the concerned body to enforce court decisions hampered the court from being effective. Generally, African States act in good faith with respect to the decisions of the African Human Rights Court, the court becomes more import.

Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russian Federation): Provisional Measures Order (ITLOS)

On May 25, 2019, the International Tribunal for the Law of the Sea (ITLOS) issued a provisional measures order to the Russian Federation to release two Ukrainian warships, a naval auxiliary ship, and their servicemen. This case adds to the jurisprudence concerning the Tribunal's institutional authority to issue a provisional measures order under Article 290(5) of the United Nations Convention on the Law of the Sea (UNCLOS).

The Provisional Measures Orders in International Environmental Disputes: A Case for International Courts and Tribunals

This article examines the ways in which international courts and tribunals should utilise their powers to prescribe provisional measures in the context of environmental disputes. The article makes the case that the system of dispute resolution has the capacity to adapt to the specific needs of environmental disputes. By analysing the key features of provisional measures and extracting new judicial trends, new light is shed on two core issues: first, this article develops a theoretical framework within which provisional measures should be understood in order to achieve their aim. Second, it shows how a certain level of judicial creativity in the design of provisional measures can have implications on whether such measures can be enforced through innovative cooperation with other institutional bodies. As a result, this article argues that provisional measures can fill the gap of enforcement in international environmental law and become a pivotal instrument in environmental protection.

CJEU rules that repeal of provisional measure does not automatically create liability for wrongful enforcement

Abstract Court of Justice of the European Union, Case C-688/17 Bayer Pharma AG v Richter Gedeon Vegyészeti Gyár Nyrt. and Exeltis Magyarország Gyógyszerkereskedelmi Kft. (2019) EU:C:2019:722 In its ruling in Bayer, the Court of Justice of the European Union found that denial of compensation to a provisionally enjoined party in case of later revocation of a patent may be allowable under Article 9(7) of Directive 2004/48/EC (the Enforcement Directive).

O CUMPRIMENTO DAS DECISÕES DA CORTE INTERAMERICANA DE DIREITOS HUMANOS PELO BRASIL: DIALÓGICA COM A APLICABILIDADE IMEDIATA DAS NORMAS DEFINIDORAS DE DIREITOS E GARANTIAS FUNDAMENTAIS

O artigo discute a incorporação e cumprimento das medidas provisórias e sentenças da Corte Interamericana de Direitos Humanos no direito brasileiro. Compreender a evolução histórico-normativa e o atual conflito hierárquico entre as normas de direito interno e a Convenção Americana de Direitos Humanos sob a ótica da efetividade dos direitos da personalidade, bem como a percepção da concretização em diversos Estados signatários permite articular os mecanismos jurisdicionais brasileiros rumo a assegurar o cumprimento dos preceitos convencionais adotados. Para tanto, utiliza-se do hipotético dedutivo de abordagem, e o procedimento de investigação é realizado pela pesquisa bibliográfica, documental e comparativa. Conclui-se que o vácuo normativo regulamentador da incorporação e implementação desses julgados se mostra irrelevante, pela possibilidade de aplicação de remédios constitucionais visando executá-las nos casos concretos.

The Humanisation of Provisional Measures? Plausibility and the Interim Protection of Rights before the ICJ

In order for an international court to grant interim protection (provisional measures), it should first satisfy that the party seeking protection has at least a plausible claim to the rights in question. So says, at least, the doctrine of plausibility, a relatively modern development in the criteria for the granting of provisional measures, but nonetheless one that now appears to be well-entrenched. But what standard does plausibility denote? This paper will trace the introduction and development of plausibility as a key criterion in provisional measures cases, and will discuss its various interpretations. Although plausibility was first introduced as a low standard intended only to exclude weak or speculative requests for interim protection, it evolved to require a meaningful—albeit provisional—analysis of the applicant party’s claim. Recent developments, however, have seen a retreat from the higher standard, and in some recent cases the plausibility assessment could better be characterised as a possibility assessment. This paper will consider the rationale of plausibility, and its changing use over time. In particular, it will ask whether plausibility is bifurcating, creating a situation in which one—strict—version of the plausibility assessment is applied where most categories of States’ rights are concerned (plausibility as a reasonable prospect of success and substantive link to the merits), and another—refocussed—standard is applied to situations where individual and group rights are at risk (plausibility as human vulnerability). The paper will focus on the case-law of the ICJ, where plausibility has been extensively discussed in orders and separate/dissenting opinions, and where some of the most exciting recent developments have taken place.

Los sujetos vulnerables en la jurisprudencia “transformadora” de la Corte Interamericana de Derechos Humanos

La Corte Interamericana de Derechos Humanos ha producido una nutrida y relevante jurisprudencia en el curso de cuatro décadas, a partir del establecimiento de ese tribunal regional en 1979, año en que entró en vigor la Convención Americana sobre Derechos Humanos. Esa jurisprudencia consta de un importante número de sentencias, opiniones consultivas y resoluciones sobre medidas provisionales y cumplimiento de sentencias. En este artículo se ofrece un panorama de uno de los sectores más incisivos y trascendentes de la jurisprudencia interamericana, que concierne a los derechos y la situación jurídica de personas consideradas “vulnerables”, en virtud de la situación de debilidad, desvalimiento o marginación en que se encuentran. El contingente de los “vulnerables” constituye una parte sustancial de la población en los Estados sobre los que ejerce jurisdicción la Corte Interamericana. El autor pasa revista a los criterios adoptados por dicho tribunal acerca de diversas categorías de sujetos vulnerables, a los que se refieren varios instrumentos internacionales de alcance universal o regional. Al respecto, son muy significativas las Cien Reglas de Brasilia sobre el Acceso a la Justicia de personas en esa condición, y el Protocolo de Santiago adoptado por la Cumbre Iberoamericana de Tribunales. Las categorías que considera este artículo son: mujeres, niños y niñas, indígenas, afrodescendientes, personas con discapacidad, migrantes, desplazados y personas privadas de libertad, a los que últimamente se añaden otros grupos que han merecido la atención del Tribunal: periodistas, defensores de derechos humanos e integrantes de la comunidad LGBTTI. La jurisprudencia interamericana sobre vulnerables ha influido en la recepción nacional del derecho internacional de los derechos humanos en este ámbito geopolítico.

The International Tribunal of the Law of the Sea and Human Rights

Discussion on human rights before the International Tribunal for the Law of the Sea (ITLOS or Tribunal) often refers to its ‘considerations of humanity’ dictum. Yet this is just one way the Tribunal takes into account the interests and rights of individuals affected by law of the sea disputes. This chapter uncovers multiple modes of engagement of ITLOS with human rights – some subtle, some bold – across three types of procedure: prompt release, provisional measures and merits cases. It illustrates how ITLOS has achieved a ‘humanisation’ of the obligation of prompt release through its context- and purpose-based interpretation; likewise, parties increasingly invoke, and ITLOS tacitly relies upon, human rights as a basis for provisional measures. While the Tribunal’s reliance on individual rights in merits decisions remains limited to date, it may consider human rights on the basis of ‘reference provisions’ within UNCLOS, the ‘considerations of humanity’ dictum and the prohibition on abuse of rights. The analysis reveals that ITLOS has paved the way for human rights to be taken into account in law of the sea disputes and that UNCLOS provides a legal framework for it.

Early vaccination: a provisional measure to prevent measles in infants

Early vaccination: a provisional measure to prevent measles in infants

Family Laws in the European Union

EU social policies should be complemented by contributing to a harmonious development of society, by reducing structural and regional imbalances, developing a balance between the a localized community and the national society, and improving the living standards of citizens and families of member states (Garrido 2002). Such important social policy principles as freedom and justice are addressed and represented in family laws in the EU regulations introduced during the period of 2000–2016. In this article, we studied the EU’s legal solutions in reference to national (Spain) laws on these matters: children and parental responsibility (adoption, child abduction, family benefits) and couples (matrimonial, regimes, prenuptial agreements, provisional measures). This legislation is necessary in the face of the proliferation of families whose members have different nationalities, and even in the mobilization of residences. Cooperation has intensified between national judicial authorities to ensure that legal decisions taken in one EU country are recognized and implemented in any other. This is highly important in civil cases, such as divorce, child custody, maintenance claims, or even bankruptcy and unpaid bills, when the individuals involved live in different countries. The development of family laws is one of the most important factors of family welfare in European countries.

The Pattern Settlement of Adat Delict of Waropen Tribe

The Adat delict of Waropen Tribe can be settled in some approaches such as the normative law, the social sciences, sociology, and anthropology of law. Some theories wrote by some experts such as Franz von Benda-Becmann and Sally Falk Moore are applied to draw how those approaches are working together in settling Adat Delict in Waropen Tribe. The pattern settlement of the Adat Delict can be settled into the Governor’s Court, the Adat’s Court or the Native’s Court, the Swapraja’s Court, the Village’s Court, and/or Judicial Independence period . Related to Waropen tribes , not all of Waropen peoples are aware of customary or village courts. It is because the Waropen peoples only recognize the existence of a dispute resolution mechanism according to local customary law. The basic regulation of the Customary (Adat) court can be seen in some Laws such as the Law No. 1 Drt of 1951 (the Emergency Law) concerning Provisional Measures to Organize the Composition, Power and Procedure of Courts, Civil Courts, the Law No. 19 of 1964 concerning the Principal Provisions of Judicial Power, The Law No. 22 of 1999 concerning Regional Government, the Law No. 21 of 2001 concerning Special Autonomy for the Province of Papua and some the Regulation Government. Keywords : the Settlement Patterns, the Adat Delict, Waropen Tribe DOI : 10.7176/JLPG/89-03 Publication date :September 30 th 2019

The Curious Case of Ghana/Côte d'Ivoire: A Consistent Approach to Hydrocarbon Activities in the Disputed Area?

AbstractThe Ghana/Côte d'Ivoire case is the first time that an ITLOS ad hoc chamber has addressed the lawfulness of unilateral hydrocarbon activities in a disputed maritime area. This paper analyzes the Chamber's ruling on Côte d'Ivoire's submission no. 2, which covers several important issues: the jurisdiction of the Chamber to decide on submission no. 2, the alleged violation of sovereign rights, and the alleged violation of Article 83(3) of UNCLOS. The paper argues that the Chamber's jurisdictional basis of forum prorogatum is questionable, and that there are inconsistent approaches between the Judgment and the Order of the provisional measures. Additionally, there are not only inconsistent understandings of the “Ivorian maritime area” within the same submission no. 2 by the Chamber, but also a logical gap in the Chamber's reasoning with regard to submission no. 2(iii). Consequently, the Chamber's inconsistent approaches may jeopardize the persuasiveness of its judgment.

The Role of African Court on Human and Peoples’ Rights (Achpr) for Human Rights Protection: The Case of Libyan Crises

The emergence of regional human rights systems depicts one of the greatest achievements in the internationalization of human rights. The foundation of the charter paved the way for the birth of the court thereafter. The African Court is established by virtue of the 1998 protocol to the Charter and the court is built upon an arsenal of protective and remedial techniques. The establishment of the court has reset the stage and created a new platform for the protection of human rights in Africa. The cardinal objective of the paper is to investigate the role of African Court on human and Peoples’ rights protection in Libya Crises taking the case of Saif Al Islam Gaddafi. The paper has utilized qualitative methodology. The government of Libya responded with brutal force against civilian protesters in contravention of international human rights and humanitarian law. The security force of the government of Libya killed many protesters as well. This situation intensified human rights violations and enforced many of the peoples to displace. The court issued an important ruling in March 2011, ordering provisional measures against Libya in the armed conflict in its territory. Libya government denied the claims of human rights violations in its territory and showed its willingness to subject itself to criminal investigations by the Court if necessary. The issue of the fund, independence, commitment and competence of judges to interpret mandate and jurisdiction, the willingness of the states to support and to abide by court decisions, and powers of the concerned body to enforce court decisions hampered the court from being effective. Generally, unless African States act in good faith with respect to the decisions of the African Human Rights Court, the court becomes no more significant.